Supreme Court: Right of Passage Recognized When Land Is Practically Unusable

[Supreme Court Ruling]

The Supreme Court has ruled that the right of passage over neighboring land can be recognized even if there are some alternative routes around the land, as long as those routes are not suitable for agricultural use. In cases where it is practically difficult to transport farming equipment due to steep hills or drainage ditches, the mere existence of an alternative route cannot be grounds for denying the right of passage.

Yonhap News Agency

The Civil Division 1 of the Supreme Court (Presiding Justice Shin Sookhee) overturned the previous ruling, which had found against plaintiff A in the appeal regarding the lawsuit for prohibition of obstruction of passage and confirmation of the right of passage over neighboring land (2024Da287080), and remanded the case to the Suwon High Court on July 18.

[Facts]

In December 2020, Mr. A purchased land in Gwangju and cultivated watermelons and Aralia elata. The land was not directly connected to a public road, so Mr. A could only access it by passing through land owned by Mr. B. However, in August 2021, Mr. B installed a fence on his property, blocking Mr. A’s passage. Mr. A then filed a lawsuit demanding the removal of the fence and cessation of obstruction.

[Key Issue]

The issue was whether the right of passage over neighboring land (the right of a landlocked landowner to pass through another’s land out of necessity) can be recognized if alternative routes exist around the property, but those routes are not suitable for farming purposes.

[Lower Court Rulings]

The court of first instance sided with Mr. A, stating that the route in question was the minimum necessary for passage and did not cause significant inconvenience to the defendant. However, the appellate court ruled against Mr. A, noting that there was a 1-meter-wide cement-paved embankment road next to a nearby stream, and that the land could be accessed by passing through woodland at the end of the embankment. The appellate court held that Mr. B’s land was not the only possible route, and that passing through the woodland did not incur excessive costs.

[Supreme Court Decision]

The Supreme Court overturned the appellate decision. The court stated, “The right of passage over neighboring land can be recognized not only when there is no access at all, but also when excessive costs are required. Even if an existing route is available, if it does not adequately serve its function, the right can still be recognized. Passage must take place in a location and manner that causes the least damage to the landowner, and this must be determined specifically according to social norms.”

The court further explained, “In this case, the woodland in question has steep slopes and deeply sunken drainage ditches, making it extremely difficult to transport crops or farming equipment, even though people can walk through it. The distance is 76 meters, and passage would require crossing three separate parcels owned by different people.”

The court concluded, “The appellate court misapplied the legal principles regarding the right of passage over neighboring land and failed to conduct the necessary review, which affected the outcome of the judgment,” and remanded the case for further proceedings.An Jaemyoung, Law Times Reporter

※This article is based on content supplied by Law Times.

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